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Judgment
THE burning point of discussion is whether the complaint filed by the complainant is barred by time. We have heard the counsel for the complainant at the time of admission of this case.
THE relevant facts which will be required to be noticed are these. The complainant, Karima Malik and her sister Rubina Lal are the owners of plot No. C-16, Sector 58, Noida, U.P. They have inherited the property from their father, late Sh. Brij Lal. Sh. Brij Lal during his life time, made an oral contract with Paras Pandit, opposite party No. 2 in the year 2000 to develop the said property by constructing house from basement till third floor on the said plot. The opposite party gave tentative estimate of Rs.63 lakh for entire construction work of the building @ Rs.450/- per sq. ft. vide annexure C-1. By the end of 2000, the opposite party constructed the basement of the said flat and the full payment upto basement was made. On 17.6.2002, Shri Brij Lal, father of the complainant, died. Husband of the complainant left her issueless and settled in USA. After the death of Shri Brij Lal, the complainant fell sick and suffered from various ailments.
THE remaining construction was got resumed in the year 2007. All the three floors, measuring total area 10950 sq. ft. @ 375/- per sq. ft. was constructed, the total amount came to Rs.41,06,250/- which was paid to the opposite party in the year 2008 for completing the said flat. The respondent after handing over the possession of the flat to the complainant, vanished in the thin air and was not found subsequently. However, he sent certificate dated 31.6.2008, annexure C-5, through his representative informing therein that the construction work had already been completed in June, 2008.
THE complainant visited the construction site and found that it was of very poor quality. There were cracks in the entire building as well as in lintel and the entire construction was defective. Poor quality of materials was used. The construction was crooked and built in a zigzag way. The building from front it was wide and narrow by six inches from back. Pillars of the building were also in zigzag position. Tiles etc. were not fixed anywhere. The complainant visited the opposite party time and again for rectification of the said defective construction but in vain. She had to deposit Rs.1.70 lakh as ''One Time Lease Agreement'' before the NOIDA authority against the said defective building.
IN the year 2010, the complainant hired another tile worker, Kishan Kumar, who put the new tiles on boundary wall which has an area of 3000 ft. He fixed the tiles @ Rs.120/- per feet and also stone of Rs.90,000/-. He worked there from 3.1.2010 to 28.3.2010.
THEREAFTER, the complainant was hospitalised in Batra Hospital and Medical Research Centre from 10.12.2010 to 13.12.2010 for treatment of severe backacke problem. In the meantime, the opposite party tried to raise additional wall about 6 inches by the side of original wall due to which the building became more defective. The complainant rushed to the office of the opposite party but she could not find him as he was absconding. She gave legal notice on 16.5.2011. It is stated that the petitioner has continuing cause of action. The present complaint was filed with the following prayers:- "It is therefore humbly prayed that this Hon''ble Forum may graciously be pleased to allow this complaint and direct the Opposite Parties:- a) To pay Rs.1,76,40,000/- (one crore seventy six lacs forty thousand) as a loss of rent payable from September 2008 to March, 2012 @Rs.30/- per sq. ft. of total measuring area of 14,000 sq. ft. b) To reconstruct the entire defective building or to pay Rs.1,40,00,000/- (one crore forty lacs ) as reconstruction cost @Rs.1000/- per sq. ft. as per the prevalent rate of construction cost of Rs.1000 to 1200 per sq. ft. c) To pay electricity bill of Rs.3,35,939/- (three lacs thirty five thousand nine hundred thirty-nine) incurred since 01.11.2007 till date against the said building. d) To refund one time lease rent of Rs.1.70 lacs (one lac seventy thousand) against the said building. e) To pay compensation of Rs.50.00 (fifty lacs) or interest @24% per annum on the abovesaid amount for mental agony, physical harassment, financial loss to her during the period of illness and treatment keeping in view of its urgency as well as its utility. f) To pay Rs.5000/- (five thousand) as cost of conveyance (to & fro) visiting the O.P. in his office. g) To pay cost of litigation of Rs.25,000/- (twenty five thousand) and/or
WE have heard the learned counsel for the petitioner. He vehemently argued that this is a continuing cause of action and legal notice was sent on 16.5.2011. He contended that he has filed affidavit of two persons who stated about crooked construction of building. The relevant parts of the portions of said affidavit run as follows:- "2.That Sh. Paras Pandit, son of Sh. Chhuchhu Pandit, resident of Khora had constructed the building at C-16, Sector 58. The wall of the building was crooked. 3.That Paras Pandit on 11.12.2010 due to said crooked construction of building wall on C-16, Sector 58, had put another wall before me adjacent to the original wall, so that outside walls of the buildings appear straight."
These affidavits were sworn by Shri Vikhayat Bhola S/o Bhagwat Dayal Bhola and Shri Poorna Prakash S/o Sh. Ram Lal.
FOR the following reasons, we do not find amenable to these arguments. As a matter of fact, letter dated 31.6.2008 carries infinite value. It is reproduced as follows:- "I Paras Pandit S/o Chuchu Pandit an Owner of Paras Builders, Hoshiyarpur, Sector 51, Noida (U.P.) I am a contractor by Profession and I have done construction work of Vikas Udyog at C-16, Sector 58, Noida. The basement of the above said [premises was completed in year of 2000 approximately the covered area is 3650 sq. ft. The full and final payment was made by the owner late Sh. Brij Lal, then the work was stopped. The work started again in Nov. 2007 and the approximate covered area of the 3 story building is 10,950 sq. ft. at the rate of Rs.375 which has been completed in June, 2008 the full and final payment of Rs.41,06,250/- (Forty one lac six thousand, two hundred and fifty only) was made by Mrs. K. Malik owner of Vikas Udyog, C-16, Sector 58, Noida which is included the covered area of the building and boundary wall and the drive way. Of the payment was made by cheques amounting to Rs.39,00,000 and the rest was made in the form of part payment."
IT leaves no room for ambiguity. It clearly means that entire money stands paid. Karima Malik is in possession of the said property since the year 2008. She had noticed the above said defects in the year 2008. The cause of action in this case arose on 31.6.2008. The complaint should have been filed within two years but the needful was not done.
MORE over, the complainant took diverse and conflicting stands. On the one hand, she submits that respondent No. 2 is an absconder. She could not locate him since the year 2008. She had to engage another person to remove the defects. There is no evidence that the complainant met Paras Pandit after the year 2008. Story created by her that the respondents tried to remove the defects in the year 2010 is made out of whole cloth. In case respondent No. 2 or his employees tried to remove the defects, the complaint instead of branding him as an absconder should have approached him and what was the necessity of engaging another builder. There is no whisper word, no syllable that she had ever met respondent No. 2. Duty casts on this Commission is to winnow truth from falsehood. Except these two affidavits, the complainant could not produce any evidence regarding the construction or of mason or any labour or any bill showing that material was purchased by the respondent No. 2. It was not explained as to what connection these two deponents have got with the construction of this house. In view of the above discussion, the complaint is barred by time. Dismissed.